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Injunction threat over extra billing

Audit says patients paid $500,000 for services covered by B.C. Health

By Cassidy Olivier, The Province; With File From Cheryl Chan July 19, 2012

wo private Vancouver health clinics are facing potential court action after an audit by the Medical Ser-vices Commission uncovered hundreds of incidents of unlawful billing for services covered by the province's health-care plan.

The audit began last year and covered complaints from as far back as 2001 relating to services rendered at two clinics run by Cambie Surgeries Corp., commission chairman Tom Vincent said Wednesday.

Of the 468 cases investigated, auditors found 205 instances of "extra billing," meaning the patient was charged for services covered under B.C.'s Medical Services Plan - something deemed illegal under sections 17 and 18 of the Medicare Protection Act.

The monetary value of the extra billing was pegged at just under $500,000, Vincent said.

The commission has advised the president of the two clinics - the Specialist Referral Clinic and the Cambie Surgery Centre - that a court-ordered injunction will be sought if the practice of extra billing isn't stopped within 30 days, he said.

"Now that we have this information, we are taking the necessary steps to enforce the act," Vincent said in a statement.

But Dr. Brian Day, president and CEO of the Cambie Surgeries Corp., said he intends to maintain the status quo, a position that will inevitably lead to a legal showdown at the end of the 30-day period.

"I consider the activity of the com-mission to be an absolute unnecessary waste of tax-funded health-care dollars," said Day, whose two clinics have been openly treating people willing to fork out money for immediate treatment rather than being put on wait lists.

Cambie Surgery Centre has been operating for 16 years, while the Specialist Referral Clinic, which offers consultation services only, has been operating for more than 10 years.

If the commission pursues an injunction, Day said he will fight it.

"We are essentially fighting for the rights of Canadians to access and care for their health," he said.

"No one can ever persuade me it is immoral, unethical and illegal for citizens in a free democratic society to spend their money to relieve their pain and suffering."

Day's company already has a constitutional challenge in court against the MEDICARE Protection Act. In the next week, it will add patients to the suit.

Meanwhile, Health Minister Mike de Jong would not speculate on what further enforcement actions the Medical Services Commission would have, should the court injunction be ignored.

"They [the commission] have con-ducted themselves thus far in accordance with their statutory responsibilities and I fully expect that they will continue to do so," de Jong said.



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The promoters of for-profit health care have been doing their best to convince provincial and federal politicians as well as the general public that the only way to improve Canada’s health care system is to open it to private, for-profit interests. Here is what the promoters of for-profit health care are saying, and the facts that refute their arguments:

They say: Those who can afford it should be able to pay for private health care.

We say: Canada’s health care system is based on the five principles of the Canada Health Act: public administration, comprehensiveness, universality, portability, and accessibility. Basically this means that Canada provides a public health system to all residents regardless of their ability to pay. Those who promote for-profit health care say it should be okay for people to pay thousands of dollars at a private clinic if they need a hip replacement, knee surgery, or other treatment. But what about the people who can’t afford to pay? What about seniors, single parents, or those dealing with chronic disease? Letting the rich pay to get faster health care in the private sector contravenes the principles of the Canada Health Act and threatens the equality of access to medical services.

They say: There is nothing wrong with provincial governments paying public dollars for surgeries at private clinics to help reduce wait times.

We say: Pouring money into the for-profit system will not reduce wait times. This approach has been proposed in British Columbia, Quebec and Alberta, with PrimeMinister Stephen Harper supporting Quebec’s plan to use private for-profit clinics. Allowing provinces to pay public dollars to private forprofit clinics for surgeries will result in more money going to the clinics’ higher administration costs

and shareholder profits. Private clinics also offer no accountability to the public system. With private

investors, their only accountability is to meeting revenue targets. There are many examples of how

wait times can be addressed in the public system. Programs like the Cardiac Care Network of Ontario and the Saskatchewan Surgical Care Network show how developing centralized provincial patient

registries and sharing information between hospital facilities, can dramatically reduce waiting times for patients.

They say: “Mixed” delivery of public and private is better.

We say: How can it be better to pay for services that have profit margins attached to them? Private

companies typically charge 10 to 15 per cent more than the public sector to fund administration costs and shareholder profits. Donald Copeman, a businessman who operates a private clinic in Vancouver and who is looking to open similar clinics in Calgary and Toronto, is getting away with charging patients thousands of dollars for quicker access to family doctors and health care services. Patients at the Copeman clinic are charged an enrolment fee of $3,900 each and annual dues of $2,900. The company’s plan calls for 4,000 patients to be enrolled at each clinic, so the annual dues alone would amount to $11.6 million. At the same time, these clinics draw doctors and other health care professionals from the public system, which already faces shortages. The result? Longer wait times for those who can’t afford to pay high enrollment and annual fees.

They say: Allowing people to pay for private health care services will free up public services.

We say: Allowing people or governments to pay inflated prices will not diminish wait times in the public system. Studies have shown that adding forprofit health care services actually lengthens waiting times in the public system because doctors opt to perform services in the private sector where they are paid more. For example, in New Zealand, where doctors are allowed to work in both public and private sectors, specialists spend less than 49 per cent of their time in public hospitals. The rest is spent in private clinics. Given that Canada is already facing a doctor shortage, allowing physicians and other health care professionals – whose education has been subsidized by taxpayers – to move into the private system will drain much-needed resources and limit public access even further.

They say: The World Health Organization (WHO) ranked Canada’s health care system 30th – this shows that our health care system is broken.

We say: The WHO World Health Report was published in 2000 and, after receiving wide criticism for its methodology, has not been used as a ranking system since. The ranking was based on only two

assessments: “overall health performance” and “performance on health level.” Both measures attempt to judge “how efficiently health systems translate expenditure into health.” What the report

did not examine was how health systems were organized and managed, or the measurement of GDP per capita (one of Canada’s strengths). The report did not account for many of the things that are most important to Canadians like access, quality or cost effectiveness, and most data was taken from written documents instead of being observed.

They say: Our health care system would be better based on a European model – it’s not about Americanizing it.

We say: The North American Free Trade Agreement (NAFTA) signed between Canada and the United States is very clear – the exemption for health care, which has kept large U.S. health corporations out of Canada, applies only to a fully public system. Once Canada’s health care system is opened to for-profit private interests, American health care corporations can move in. Under NAFTA, Canada must give “national treatment” rights to U.S.-based companies to compete for health care services. Saying a new system would be based on public-private systems in Sweden, France, Switzerland or other European countries is a complete fallacy. Private is private — no matter what country is promoting the concept – and in Canada, increased privatization would leave our public health care system vulnerable to American interests because of our historic trade relationship with the United States.Profit is not the cureCanada’s public health care system needs protection from the promoters of private, for-profit health care. With better management and a commitment from the federal government to enforce the letter and spirit of the Canada Health Act, the public system could

be strengthened for the benefit of all Canadians. Privatizing health care will only benefit those who can afford to pay, and would allow some doctors, business people and corporations to make money off sick and injured Canadians.

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That their angle yep.

Seems odd that the government and constitution value life so highly that they won't let the doctors assist someone with suicide (not that I disagree with that) but they don't value it enough to allow a Canadian to pay for a service that would dramatically increase their quality of life but instead force them into a system that could leave them suffering in pain queued up for treatments that could be years away by forcing them into a system that they clearly are incapable of running effeciently.

I ain't a lawyer so I don't know if they will win but their argument is compelling and I know who I will be cheering for.

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I'll admit that I am biased as I work in health care, but in my opinion, health care is BASIC right of every individual. Making a profit off of other people's sickness and misery is unthinkable for me.

If the main priority is to make a few bucks, how much are they really gonna care about the quality of treatment a patient receives. If they can cut a few corners in order to pad their profit margin, won't they?

I can't imagine charging patients for each piece of gauze used, or every Tylenol pill that is given to help control pain.

I know it's not exactly the same thing, but you just have to look at for profit long term care homes, or the quality of work done by the privatized janitorial services.. that should be enough to change some minds. I don't trust the private sector to clean a hospital, let alone provide quality of care to my loved ones.




Yeah there are problems with our health care system, but I think there must be better ways of dealing with it than turning to privatization.

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I'll admit that I am biased as I work in health care, but in my opinion, health care is BASIC right of every individual. Making a profit off of other people's sickness and misery is unthinkable for me.

If the main priority is to make a few bucks, how much are they really gonna care about the quality of treatment a patient receives. If they can cut a few corners in order to pad their profit margin, won't they?

I can't imagine charging patients for each piece of gauze used, or every Tylenol pill that is given to help control pain.

I know it's not exactly the same thing, but you just have to look at for profit long term care homes, or the quality of work done by the privatized janitorial services.. that should be enough to change some minds. I don't trust the private sector to clean a hospital, let alone provide quality of care to my loved ones.




Yeah there are problems with our health care system, but I think there must be better ways of dealing with it than turning to privatization.

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Well, given that it would generally be people that aren't content with the public system that would be paying the premium to use the private one I suspect that it wouldn't be a good business model to provide shoddy care. Never mind that as proffesionals doctors are obliged to follow codes of ethics and much like engineers and lawyers those that fail to do so would be liable to loose their certifcation. (And the same can be done with nurses etc.)

There very well might be ways of improving the healthcare system but I am less than confident of the government figuring that out!

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Universal Healthcare Wins a Rare (And Possibly Short-Term) Victory in British Columbia

July 19th, 2012

Canadian nationalists can allow themselves a brief moment of unabashed exhilaration at the news that the British Columbia government is, finally, after many long and patient years, going after private surgeon Brian Day’s Cambie Surgery operation in Vancouver, B.C., for

illegal billing of patients. It’s about damned time. The victory is not complete. The Medical Services Commission apparently will not be attempting to secure refunds for all the patients who paid illegally (which they presumably won’t mind too much), nor it will be attempting to fine Cambie Surgery to recoup the funding lost. But at least, apparently, public money will no longer flow to operations at clinics engaged in illegal double-billing.

And now for the heavier and more depressing part of this story. It’s an opportunity to go back into how “universal healthcare” works in this country, and I hope it will be useful to many Canadians (like me) who are passionately proud of our increasingly strained universal healthcare system, but not totally sure how it works on the ground level. (Aside, of course, from the fact that unlike Americans we don’t have to swipe a credit card on our way out of the hospital.)

This story begins with the major cuts to medicare that governments across the country put into place 20 years ago, during the early 1990s. One of the “victims” was Dr. Brian Day, a Vancouver surgeon. In 1996, apparently after his

hours in a public operating room were cut, Day headed off into the private sector, creating the Cambie Surgery Centre where he offered patients a chance to queue-jump off the public sector waiting list — provided, of course, that they were willing to pay him a substantial amount of money.

Actually, under B.C. and federal law, none of this is illegal. All that talk about preventing “two-tier healthcare” a few years ago was a red herring: in Canada, we already have two-tier healthcare. There’s one tier called the universal public system, which all Canadians can access, and then there’s another tier called the private system, which only Canadians with sufficient cash can access. The private system is quite small in Canada, because until recently the public system tended to serve most people’s basic needs well enough, and there just wasn’t much of a market for buying medical services privately.

Exactly where the boundary between public and private lies in our system is always a point of contention. In fact, most of our healthcare — including the leading cost drivers, like doctors and prescription drugs — are already delivered by the private sector. Doctors’ clinics and drug companies are private businesses. They’re just paid for out of the public purse, so in practice, most healthcare you get outside of the hospital (plus all drugs you get inside the hospital) are actually delivered by the private sector, and paid for by a government insurance policy.

There are two caveats in place which try to maintain the borders between the public healthcare system (where you pay nothing, and get whatever healthcare the government can afford to give you) and the private healthcare system (where you pay cash for whatever you want). The first is a law banning private health insurance from covering services that are already offered in the public sector. That is, extended health can cover drug prescriptions, but not, say, a visit to the ER, because that’s already covered by medicare. Those laws were thrown into doubt by the Supreme Court’s 2005 ruling in

Chaoulli v. Quebec, but they remain on the books in some provinces, including B.C., where the Fraser Institute, which appears to be funded by various private healthcare companies, is currently mounting a vigorous assault on limits to private healthcare insurance.

The second set of limitations, which is more relevant to the current case, basically requires doctors to choose whether they want to work in the public system or the private system. Again, it doesn’t require them to do either one — but it does say that they can’t pick both. The way it works in B.C. is this. Any doctor can enrol with the government’s medicare program, called the Medical Services Plan (MSP), and bill the government according to its

official fee schedule whenever you visit her clinic.

However, if she enrols with MSP and bills the government for some patients, she has to do so for all of them, and she can’t bill both the government and the patient for the same service. The MSP administration refers to any of these situations as “extra billing,” but it’s the second scenario that’s attracted the most public attention, and it’s often known simply as “double billing.” Under current B.C. law, double billing could be charging a resident of B.C. for a clinic visit and then billing the government for the same visit, or it could be billing the government for each visit while charging residents an annual membership fee or facility fee for the right to visit the clinic, etc., etc.

The principle behind this technicality was actually a compromise between the universal healthcare advocates of the 1960s and the doctors and other health professionals who were, at the time, private businessmen. Rather than outlaw private healthcare, or nationalize the doctors’ clinics and run a more public outfit like the National Health Service in Britain, the medicare model adopted from the NDP government in Saskatchewan allowed doctors’ private businesses to remain in the healthcare sector, and even charge cash if they wanted to.

But they could also participate in the public insurance scheme, and if they did so, they had to agree not to charge privately for any Canadian citizen who was entitled to medical treatment under the medicare scheme. The NDP gambled, correctly as it turned out, that so many doctors would be attracted by the guaranteed payment scheme, and so many Canadians would be unwilling to pay privately, that in effect this would nationalize healthcare without the messy business of banning private business.

Which brings us back to Dr. Day and Cambie Surgery. The fact that Day’s surgery centre is essentially a private hospital would probably be enough to ensure some controversy, although in that respect it’s not exceptional. Canada has its fair share of cash-only “executive clinics,” private MRI and diagnostic scanning offices, private surgery outfits, etc., etc. Day has just become a high-profile representative of the sector because of his outspoken advocacy of healthcare reform.

But did Day, or rather some of the doctors who work in the same clinics as Day, cross the line by engaging in illegal “extra billing”? I have no personal experience with Cambie Surgery and honestly couldn’t say one way or the other. But that’s been the speculation for years. And the Medical Services Commission thought so too. MSC runs the medicare insurance scheme in B.C. It’s also drastically understaffed, so that in practice, as the MSC

admitted in court in 2009, its compensation to private doctors is basically run on the honour system: when doctors submit a claim, MSC assumes they are entitled to it. A computer flags problematic cases, but something in excess of 98% of all submitted claims get paid out in full without question or comment.

Still, after the B.C. Nurses Union backed some private complaints about the clinics in 2007, the MSC decided to investigate Cambie Surgery and sent a letter asking to review its files to search for evidence of illegal extra-billing. Day refused point-blank, saying “we will not allow any agent of your Commission to access our Centre or its data base.” The flare-up dragged on for a while without resolution, until the MSC went to the B.C. Supreme Court asking for a court order allowing the audit to go ahead. It

filed an affidavit detailing numerous instances of what it alleged to be illegal double-billing and extra-billing by the private clinic.

It’s worth noting that at this point the legal brouhaha was simply about whether the B.C. government would be allowed to audit a private clinic which it believed was illegally billing the provincial government, and individual British Columbians, for private healthcare services. Of course that doesn’t mean anyone’s guilty of anything. But a cynical mind might at this point begin to wonder what Cambie Surgery’s files contain, if it’s willing to fight a lengthy court battle to prevent the government from getting a look at them.

In any case, it didn’t end there. Cambie Surgey and a related private medical outfit, Specialist Referral, appealed to the B.C. Court of Appeal, which issued

a ruling the following year. In the submissions that court reviewed, it seemed that the private clinics “admit that they have engaged in practices that would violate the statutory prohibitions against direct and extra billing,” but insisted that the ban in question was unconstitutional, arguing that the court should extend the Supreme Court’s precendent-setting Chaoulli v. Quebec ruling on private insurance to coverprivate billing, as well. In a unanimous verdict written by Harvey Groberman, appointed by the Harper government in 2008, the appeals court threw out the injunction against Cambie Surgery on procedural grounds but left open the possibility that the Commission could re-apply for a new warrant “in properly constituted proceedings.”

This might appear to be a victory for Cambie Surgery, but as the excellent legal blog

The Court explains, it was a decidedly pyrrhic victory. The private clinics argued that a court order allowing an audit of their files to search for illegal activity could not be granted until after the court ruled on whether medicare laws were unconstitutional (which they claim they are, and which Day has now started a separate lawsuit on with the assistance of the right-wing Canadian Constitution Foundation). The appeals court disagreed. It found that the government did have the power to audit the private clinics: it just hadn’t gone about exercising that power in the right way.

It didn’t take long for the MSC to try and correct its errors. In late 2010, MSC began arranging for a warrant to search Cambie Surgery’s files. Strangely, when this made the press, Day claimed that he was already “

negotiating a voluntary order to show we’re not afraid of the audit.” If he wasn’t afraid of the audit, why did they go through two courts trying to fight it? I’m not sure. Anyhow, in January 2011, Cambie Surgery submitted to the audit. In response, a brazen Day freely and proudly confessed that he was “breaking the law” and declared the investigation to be “a waste of taxpayers’ dollars.”

Which brings us to today. The results of the long-awaited audit have finally been released, and they

show evidence of illegal extra-billing on a vast scale. In response, the MSC has ordered the private clinics to stop breaking the law — which means, in effect, that they’ll have to go either fully public or fully private. We shouldn’t assume it’s over. The clinics will presumably appeal the ruling again on constitutional grounds. We’re a long way from resolution on this, and it’s unclear who will win the legal battle.

It would be interesting to know how an NDP government will respond. In theory, even if Day wins, the government could override a court verdict in order to protect the universal healthcare system, using the notwithstanding clause. But it seems unlikely the current Liberal government — a close ally of the federal Conservatives — would do so. I kind of doubt the NDP would be willing to take that step either. So really we’re back to wondering how the long-delayed court argument over constitutionality will turn out.

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And by incorporating more privatization we will only be hurting our public health care system, for example, increasing wait times, increased costs etc. - a claim which is supported by many peer-reviewed studies.

I admit I haven't been looking for long, about 40 minutes or so, but I have yet to find a peer-reviewed study that shows privatizing health care is the way to go.

Again, I know our system needs to be fixed, but I'd prefer it if this process did not include corporations looking for a profit.

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LoL, I used to work there and probably did some of the billing! I hope don't get a subpoena.

From what I understand, the doctors and nurses there all had their regular work at the hospitals under the public system. The private clinic provides extra surgery time/operating facilities that would otherwise not be available to the system as a whole.

The fact of the matter is, many of these patients would otherwise go to the US to get these procedures done anyways. At least this money stays in BC.

There is the whole arguement on what is fair or not. But is denying someone the option of immediate treatment really the morally superior choice?

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Another article highlighting the same case.. just provides further details and shows how a private clinic was billing patients AND the provincial government. This clinic basically stole $500 000 from taxpayers, I wonder if any other clinics are involved in this practice, and if so, how much taxpayer money is being wasted.

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Well said. I agree with your sentiments.

To put it more frankly, the private tier for profit medical system in Canada is a cancer on the public system and the focus should be on healing the system that is almost universally regarded as the best system in the world, outside of the corporately controlled land to our South.

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